High Court · 2007

2. The predecessor-in-interest of the present opposite parties file d Title Suit No. 17/1986 in the Court of the learned Munsiff No. 2, (now, the Ci vil Judge, Junior Division), Tinsukia, against the revision petitioner praying f or a decree for eviction on the ground of defaulter contending inter alia that t he father of the defendant/revision petitioner took the suit premises on monthly rent of Rs. 26/- according to the English calendar payable within the first wee k of succeeding month in which the rent becomes due, and that though the defenda nt’s father regularly paid the rent during his life time, but after his death th e revision petitioner since the month of October, 1983 has defaulted in payment of the rent. The defendant/ revision petitioner contested the said proceeding by filing written statement stating inter alia that his father was not a tenant un der the plaintiff in respect of the house but in respect of the vacant land wher eupon his father constructed the permanent structure within five years from the date of commencement of tenancy and hence is protected under the provisions of t he Assam Non Agricultural Urban Areas Tenancy Act, 1955 (hereinafter referred to as (cid:28)the Tenancy Act, 1955 (cid:29))

3. The learned trial Court on the basis of the pleadings framed the following issues: Whether there is any cause of action for the suit? Whether the suit is barred by the provisions of the Assam Non Agricultur 1) 2) al Urban Areas Tenancy Act? Whether the father of the defendants late Palita Rai was the monthly ten 3) ant under the Plaintiff in respect of the suit premises and after his death the defendants stepped into the shoes of their father? 4) Whether the father of the defendants late Palita Rai possessed the land on which the suit premises situate on yearly rent from its owner and constructed the house thereon? 5) 6) 7) Whether the defendants are the defaulter in payment of rent? Whether the plaintiff is entitled to get the decree as prayed for? To what relief/ reliefs the parties are entitled?

4. The plaintiff, in support of his case, examined two witnesses an d a number of documents were exhibited. The defendant also examined three witne sses and exhibited a number of documents in support of his case. The learned Mun siff, upon appreciation of the evidence on record, decreed the suit by rejecting the plea of the defendant that his father was a tenant in respect of the vacan t land and not in respect of the house. Being aggrieved, the defendant preferred an appeal in the Court of the learned Civil Judge (Senior Division), which was also dismissed by affirming the judgment and decree passed by the learned trial Court.

5. oner and Mr. G. Singh, leanred counsel for the opposite party. Heard Mr. Kamal Agarwal, learned counsel for the revision petiti

6. Mr. Agarwal, learned counsel for the revision petitioner has con tended that it is evident from the evidences on record that the defendant’s fath er was never a tenant in respect of any house as alleged by the plaintiff but he was a tenant in respect of the vacant plot of land and within five years from t he date of commencement of the tenancy, his father constructed the permanent str ucture thereon and therefore the defendant is protected under the provisions of the Tenancy Act of 1955. Mr. Agarwal has further contented that the issue Nos. 2 and 3 have, therefore, been wrongly decided by the courts below against the def endant and in favour of the plaintiff. It has further been submitted that since the defendant was a tenant in respect of the vacant land and not in respect of t he houses as claimed by the plaintiff, the suit under the Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as (cid:28)the Rent Control Act, 1972 (cid:29) is n ot maintainable.

7. Mr. Singh, on the other hand, referring to the findings recorde d by the learned Courts below has submitted that it is evident from the discussi on made in the judgment that the plaintiff by adducing oral and documentary evid ence has proved that the tenancy was in respect of the house and not in respect of the vacant land as contended by the defendant. It has further been submitted that the defendant has failed to prove that the tenancy was in respect of the va cant land and not in respect of the house and within five years from the date of commencement of such tenancy, the father of the defendant constructed permanent structure. Hence, the learned Courts below have rightly decreed the suit in fav our of the plaintiff. The only contention, which has been raised in the present revisi 8. on petition, is that the father of the defendant being tenant in respect of the vacant land and having constructed permanent structure within 5 (five) years fro m the date of commencement of the tenancy, the defendant is protected under the provisions of the Tenancy Act, 1955 and hence, the suit under the Rent Control A ct, 1972 is not maintainable.

9. The learned trial Court in issue Nos. 2 and 3 has made detail di scussion of the evidences on record. It appears from the said discussion and evi dences on record that the plaintiff by adducing oral and documentary evidence ha s proved that the tenancy was in respect of the house and not in respect of the land. On the other hand, the defendant though contended that the tenancy was not in respect of the land, the learned trial Court has found that defendant could not prove such tenancy and even tenancy agreement, which according to the defend ant was executed, was not proved before the Court. The trail Court has also disb elieved that such written agreement was stolen. There being no evidence on reco rd that the tenancy was created in respect of the vacant land only and also ther e being no proof that the defendant has constructed permanent structure within f ive years from the date of commencement of such tenancy, the learned Courts belo w have rightly held that the tenancy was in respect of the house only. It is als o evident from the discussion of the evidences on record by the learned Courts b elow that the plaintiff could proof that the tenancy was in respect of the house and monthly rent was not paid in respect of the said house since October 1983. Such concurrent finding of fact cannot be disturbed in revision petition under S ection 115 of the C.P.C. Hence, the revision petition dismissed being devoid of any merit.

10. At this stage, it has been submitted by Mr. Agarwal, learned cou nsel for the revision petitioner, that a talk of compromise between the parties is going on. Mr. Singh, the learned counsel for the opposite party has submitted that he has no instruction in this regard.

11. It is needless to say that the dismissal of the revision petitio n will not be a bar to arrive any settlement between the parties. Considering su bmission of the learned counsel for the parties and keeping in view the long occ upation of the suit premises in question, I allow the revision petitioner to occ upy the said premises for a period of 1 (one) year from today on monthly payment (according to English Calendar months) of Rs. 150/-(Rupees one hundred fifty) w ithin 7 (seven) days of the succeeding month, subject to filing an undertaking b y the revision petitioner before the learned trail Court within 30 (thirty) days from today that on completion of the said period of 1(one) year from today, i.e ., on or before 31st of August, 2008, he shall hand over the vacant possession o f said premises to the opposite parties herein. It is also made clear that paym ent of the aforesaid sum of Rs. 150/- per month shall not create any new tenancy in favour of the revision petitioner. Needless to say that in case of violation of the aforesaid condition and non-filing of the undertaking within the specifi ed period, the opposite parties shall be at liberty to put the decree in executi on.

12. y is directed to send down the records forthwith. The revision petition is accordingly dismissed. No cost. Registr